AU leaders may have decided against a mass withdrawal from the ICC, but confrontation is still in the air. As trial of President Kenyatta draws near, Kenyans are reacting with a mixture of defiance and resignation.
Kenya's foreign affairs minister Amina Mohamed told the media in Nairobi on Monday that the International Criminal Court would have to wait "until afer the president leaves office."
President Uhruru Kenyatta's trial on charges of crimes against humanity is due to start in The Hague on November 12.
Some Kenyans, like political anaylst Egara Kabaji, are clearly worried. "It basically means Kenya becomes a pariah state. Nobody will want to do business with us," he told DW's Nairobi correspondent James Shimanyula.
Lucy Mwangi, who sells chicken in Kariobangi on the eastern outsikirts of the Kenyan capital, said she didn't suport Kenyatta going to ICC because it would be "unfair for Kenyans."
Kenyan computer specialist Andrew Wasike, also speaking to DW, said Kenyatta should go to The Hague and "comply with all the protocols that the ICC has set up so he doesn't look defiant."
Those Kenyans were speaking after an African Union (AU) special summit in Addis Ababa, which was called to review the bloc's relationship with the ICC.
Kenyatta and his deputy, William Ruto, are alleged to have masterminded a vicious campaign of ethnic violence that left at least 1,100 people dead and more than 600,000 homeless after the disputed elections in 2007. That is why they are going on trial.
"Unfair and unjust"
At the AU summit, Kenya, Rwanda and Uganda put forward a resolution urging for a withdrawal from the Rome Statute, the legal foundation for the ICC. This failed to obtain majority backing. Before the summit started, there was support for the ICC from political heavyweights Nigeria, South Africa and Ghana.
The AU's deliberations were opened by the chairman of its executive council, Ethiopian Foreign Minister Tedros Adhanom Ghebreyesus, who branded the treatment of Africa by the ICC as "unfair and unjust." He insisted that Kenyan President Uhruru Kenyatta should be allowed to "govern his country," an apparent reference to his expected enforced absence from Kenya while he is in The Hague.
AU leaders want the United Nations Security Council (UNSC) to defer Kenyatta's trial for a year. The UNSC has the authority to do this under article 16 of the ICC's Rome Statute.
Solomon Derso is an expert on the AU at the Institute for Security Studies (ISS) in Addis Ababa. He told DW the UNSC would only agree to such a deferral when there was a threat to international security and that was not in evidence in the case of Kenya.
"I really don't see any positive response coming from the side of the UN Security Council," he said.
On examining the possible voting intentions of two permanent members of the UNSC, Harmen van der Wilt, professor of international criminal law at the University of Amsterdam, came to a similar conclusion. "It is well known that the UK and France are supporters of the International Criminal Court so they could say, well, we could veto the decision," he told DW.
AU leaders have decided to set up a contact group, composed of five members of the AU's executive council, to consult with the UNSC, in particular the five permanent members, and raise the AU's concerns about its relationship with the ICC. Whether the groups achieves anything depends on the decision made in Kenya's case and time is running out. Kenyatta's trial is just weeks away.
The AU recommended that as a last resort Kenyatta should simply refuse to appear at the court in The Hague.
In summary Solomon Derso said the relationship between the AU and the ICC was "as sour as it was before the summit."